May 2016 Waiver Item W-10 - Meeting Agendas (CA State Board of Education)

California Department of Education Executive Office SBE-005 General (REV. 08/2014) ITEM #W-10

CALIFORNIA STATE BOARD OF EDUCATION

MAY 2016 AGENDA

General Waiver

SUBJECT Request by Magnolia Elementary School District to waive California Action Education Code Section 5020, and portions of sections 5019, 5021, and 5030, that require a districtwide election to establish a by-trustee- area method of election. Consent

Waiver Number: 10-2-2016

SUMMARY OF THE ISSUES

School districts that elect board members at-large face existing or potential litigation under the California Voting Rights Act of 2001 (CVRA). Pursuant to the California Education Code (EC), a district can change from at-large elections to by-trustee-area elections only if the change is approved by both the County Committee on School District Organization (County Committee) and voters at a districtwide election.

To reduce the potential for litigation and to establish by-trustee-area elections as expeditiously as possible, the Magnolia Elementary School District (ESD) requests that the California State Board of Education (SBE) waive the requirement that a by-trustee- area election method be approved at a districtwide election—allowing by-trustee-area elections to be adopted upon review and approval of the County Committee.

Authority for Waiver: EC Section 33050

RECOMMENDATION

Approval Approval with conditions Denial

The California Department of Education (CDE) recommends the SBE approve the request by the Magnolia ESD to waive EC Section 5020, and portions of sections 5019, 5021, and 5030, which require a districtwide election to approve a by-trustee-area method of election.

SUMMARY OF KEY ISSUES

Approval of the waiver request would eliminate the election requirement for approval of trustee areas and a by-trustee-area method of election for future board elections in the Magnolia ESD. Voters in the district will continue to elect all board members—however,

Revised: 6/27/2018 2:54 PM Elimination of Trustee Area Election Page 2 of 3 if the waiver request is approved, all board members will be elected by trustee areas, beginning with the next board election.

The County Committee has the authority to approve or disapprove the adoption of trustee areas and the method of election for school district governing board elections. Pursuant to EC Section 5020, County Committee approval of trustee areas and election method constitutes an order of election; thus, voters in the district have final approval.

Many districts in California are facing existing or potential litigation under the CVRA because of their at-large election methods. To help avoid potential litigation, the Magnolia ESD is taking action to establish trustee areas and adopt a by-trustee-area election method. In order to establish the trustee areas and the method of election as expeditiously as possible, the district is requesting that the SBE waive the requirement that the trustee areas and the election method be approved at a districtwide election. If the SBE approves the waiver request, a by-trustee-area election method can be adopted in the district upon review and approval of the County Committee without a subsequent local election to approve the change.

Only the election to establish trustee areas and the election method will be eliminated by approval of the waiver request—voters in the school district will continue to elect all governing board members. Moreover, approval of the waiver request will not eliminate any existing legal rights of currently seated board members.

The waiver request has been reviewed by the CDE and it has been determined that there was no significant public opposition to the waiver at the public hearing held by the governing board of the district. The CDE has further determined that none of the grounds specified in EC Section 33051, which authorize denial of a waiver, exist. The CDE recommends the SBE approve the request by the Magnolia ESD to waive EC Section 5020, and portions of sections 5019, 5021, and 5030, which require a districtwide election to approve a by-trustee-area method of election.

Demographic Information:

The Magnolia ESD has a student population of 6,465 and is located in an urban area of Orange County.

Because this is a general waiver, if the SBE decides to deny the waiver, it must cite one of the seven reasons in EC 33051(a), available at http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml? lawCode=EDC§ionNum=33051.

SUMMARY OF PREVIOUS STATE BOARD OF EDUCATION DISCUSSION AND ACTION

The SBE has approved more than 125 similar waivers—most recently at the March 2016 SBE meeting for the Anaheim City School District (SD) in Orange County and the Fullerton Elementary SD, also in Orange County.

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FISCAL ANALYSIS (AS APPROPRIATE)

Approval of the waiver request will not have negative fiscal effects on any local or state agency. Failure to approve the request will result in additional costs to the Magnolia ESD for a districtwide election.

ATTACHMENT(S)

Attachment 1: Summary Table (1 page)

Attachment 2: Magnolia Elementary School District General Waiver Request 10-2-2016 (6 pages). (Original waiver request is signed and on file in the Waiver Office.)

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Summary Table

Public Hearing Waiver Bargaining Unit, Representatives and Board Public Hearing SSC/Advisory Number District Period of Request Consulted, Date, and Position Approval Date Advertisement Committee Position

Magnolia Educators Association, Jodi Brown Requested: President The public Reviewed by all January 1, 2016 1/8/2016 hearing notice schoolsite councils, to Support was posted at all the District English December 31, 2017 nine schools, Learner Advisory California School Employees Association, three public Committee, and the Magnolia Recommended: Matt Sumner locations, and in Parent Teacher Elementary January 2, 2016 President a local Association School to 1/8/2016 newspaper—the 1/8/2016 10-2-2016 District December 31, 2017 Support 2/4/2016 Anaheim Bulletin. No objections

Created by California Department of Education April 4, 2016

California Department of Education WAIVER SUBMISSION - General

CD Code: 3066589 Waiver Number: 10-2-2016 Active Year: 2016

Date In: 2/11/2016 1:43:11 PM

Local Education Agency: Magnolia Elementary School District Address: 2705 West Orange Ave. Anaheim, CA 92804

Start: 1/1/2016 End: 12/31/2017

Waiver Renewal: N Previous Waiver Number: Previous SBE Approval Date:

Waiver Topic: School District Reorganization Ed Code Title: Elimination of Election Requirement Ed Code Section: portions of 5019, 5021, 5030, and all of 5020 Ed Code Authority: 33050

Ed Code or CCR to Waive: Education Code § 5019. Trustee areas and size of school district governing boards; powers of county committee; proposal and hearing

(a) Except in a school district governed by a board of education provided for in the charter of a city or city and county, in any school district or community college district, the county committee on school district organization may establish trustee areas, rearrange the boundaries of trustee areas, abolish trustee areas, and increase to seven or decrease to five the number of members of the governing board, or adopt one of the alternative methods of electing governing board members specified in Section 5030.

(b) The county committee on school district organization may establish or abolish a common governing board for a high school district and an elementary school district within the boundaries of the high school district. The resolution of the county committee on school district organization approving the establishment or abolition of a common governing board shall be presented to the electors of the school districts as specified in Section 5020.

(c) (1) A proposal to make the changes described in subdivision (a) or (b) may be initiated by the county committee on school district organization or made to the county committee on school district organization either by a petition signed by 5 percent or 50, whichever is less, of the qualified registered voters residing in a district in which there are 2,500 or fewer qualified registered voters, by 3 percent or 100, whichever is less, of the qualified registered voters residing in a district in which there are 2,501 to 10,000 qualified registered voters, by 1 percent or 250, whichever is less, of the qualified registered voters residing in a district in which there are 10,001 to 50,000 qualified registered voters, by 500 or more of the qualified registered voters residing in a district in which there are 50,001 to 100,000 qualified registered voters, by 750 or more of the qualified registered voters residing in a district in which there are 100,001 to 250,000 qualified registered voters, or by 1,000 or more of the qualified registered voters residing in a district in which there are 250,001 or more qualified registered voters or by

Revised: 6/27/2018 2:54 PM Elimination of Trustee Area Election Attachment 2 Page 2 of 6 resolution of the governing board of the district. For this purpose, the necessary signatures for a petition shall be obtained within a period of 180 days before the submission of the petition to the county committee on school district organization and the number of qualified registered voters in the district shall be determined pursuant to the most recent report submitted by the county elections official to the Secretary of State under Section 2187 of the Elections Code.

(2) When a proposal is made pursuant to paragraph (1), the county committee on school district organization shall call and conduct at least one hearing in the district on the matter. At the conclusion of the hearing, the county committee on school district organization shall approve or disapprove the proposal.

(d) If the county committee on school district organization approves pursuant to subdivision (a) [the rearrangement of] the boundaries of trustee areas for a particular district, then [the rearrangement of] the trustee areas shall be effectuated for the next district election occurring at least 120 days after [its] approval[, unless at least 5 percent of the registered voters of the district sign a petition requesting an election on the proposed rearrangement of trustee area boundaries. The petition for an election shall be submitted to the county elections official within 60 days of the proposal's adoption by the county committee on school district organization. If the qualified registered voters approve pursuant to subdivision (b) or (c) the rearrangement of the boundaries to the trustee areas for a particular district, the rearrangement of the trustee areas shall be effective for the next district election occurring at least 120 days after its approval by the voters].

[§ 5020. Presentation of proposal to electors

(a) The resolution of the county committee approving a proposal to establish or abolish trustee areas, to adopt one of the alternative methods of electing governing board members specified in Section 5030, or to increase or decrease the number of members of the governing board shall constitute an order of election, and the proposal shall be presented to the electors of the district not later than the next succeeding election for members of the governing board.

(b) If a petition requesting an election on a proposal to rearrange trustee area boundaries is filed, containing at least 5 percent of the signatures of the district's registered voters as determined by the elections official, the proposal shall be presented to the electors of the district, at the next succeeding election for the members of the governing board, at the next succeeding statewide primary or general election, or at the next succeeding regularly scheduled election at which the electors of the district are otherwise entitled to vote, provided that there is sufficient time to place the issue on the ballot.

(c) If a petition requesting an election on a proposal to establish or abolish trustee areas, to increase or decrease the number of members of the board, or to adopt one of the alternative methods of electing governing board members specified in Section 5030 is filed, containing at least 10 percent of the signatures of the district's registered voters as determined by the elections official, the proposal shall be presented to the electors of the district, at the next succeeding election for the members of the governing board, at the next succeeding statewide primary or general election, or at the next succeeding regularly scheduled election at which the electors of the district are otherwise entitled to vote, provided that there is sufficient time to place the issue on the ballot. Before the proposal is presented to the electors, the county committee on school district organization may call and conduct one or more public hearings on

Revised: 6/27/2018 2:54 PM Elimination of Trustee Area Election Attachment 2 Page 3 of 6 the proposal.

(d) The resolution of the county committee approving a proposal to establish or abolish a common governing board for a high school and an elementary school district within the boundaries of the high school district shall constitute an order of election. The proposal shall be presented to the electors of the district at the next succeeding statewide primary or general election, or at the next succeeding regularly scheduled election at which the electors of the district are otherwise entitled to vote, provided that there is sufficient time to place the issue on the ballot.

(e) For each proposal there shall be a separate proposition on the ballot. The ballot shall contain the following words:

“For the establishment (or abolition or rearrangement) of trustee areas in ____ (insert name) School District --Yes” and “For the establishment (or abolition or rearrangement) of trustee areas in ____ (insert name) School District--No.”

"For increasing the number of members of the governing board of ____ (insert name) School District from five to seven--Yes" and "For increasing the number of members of the governing board of ____ (insert name) School District from five to seven--No."

"For decreasing the number of members of the governing board of ____ (insert name) School District from seven to five--Yes" and "For decreasing the number of members of the governing board of ____ (insert name) School District from seven to five--No."

"For the election of each member of the governing board of the ____ (insert name) School District by the registered voters of the entire ____ (insert name) School District--Yes" and "For the election of each member of the governing board of the ____ (insert name) School District by the registered voters of the entire ____ (insert name) School District--No."

"For the election of one member of the governing board of the ____ (insert name) School District residing in each trustee area elected by the registered voters in that trustee area--Yes" and "For the election of one member of the governing board of the ____ (insert name) School District residing in each trustee area elected by the registered voters in that trustee area--No."

"For the election of one member, or more than one member for one or more trustee areas, of the governing board of the ____ (insert name) School District residing in each trustee area elected by the registered voters of the entire ____ (insert name) School District--Yes" and "For the election of one member, or more than one member for one or more trustee areas, of the governing board of the ____ (insert name) School District residing in each trustee area elected by the registered voters of the entire ____ (insert name) School District--No."

"For the establishment (or abolition) of a common governing board in the ____ (insert name) School District and the ____ (insert name) School District--Yes" and "For the establishment (or abolition) of a common governing board in the ____ (insert name) School District and the ____ (insert name) School District--No."

If more than one proposal appears on the ballot, all must carry in order for any to become effective, except that a proposal to adopt one of the methods of election of board members

Revised: 6/27/2018 2:54 PM Elimination of Trustee Area Election Attachment 2 Page 4 of 6 specified in Section 5030 which is approved by the voters shall become effective unless a proposal which is inconsistent with that proposal has been approved by a greater number of voters. An inconsistent proposal approved by a lesser number of voters than the number which have approved a proposal to adopt one of the methods of election of board members specified in Section 5030 shall not be effective.]

§ 5021. Incumbents to serve out terms despite approval of change

(a) If a proposal for the establishment of trustee areas formulated under Section[s] 5019 [and 5020] is approved [by a majority of the voters voting at the election], any affected incumbent board member shall serve out his or her term of office and succeeding board members shall be nominated and elected in accordance with Section 5030. In the event two or more trustee areas are established [at such election] which are not represented in the membership of the governing board of the school district, or community college district the county committee shall determine by lot the trustee area from which the nomination and election for the next vacancy on the governing board shall be made.

(b) If a proposal for rearrangement of boundaries is approved [by a majority of the voters voting on the measure, or] by the county committee on school district organization [when no election is required], and if the boundary changes affect the board membership, any affected incumbent board member shall serve out his or her term of office and succeeding board members shall be nominated and elected in accordance with Section 5030.

(c) If a proposal for abolishing trustee areas is approved [by a majority of the voters voting at the election], the incumbent board members shall serve out their terms of office and succeeding board members shall be nominated and elected at large from the district.

§ 5030. Alternate method of election

Except as provided in Sections 5027 and 5028, in any school district or community college district having trustee areas, the county committee on school district organization and the registered voters of a district, pursuant to Section[s] 5019 [and 5020], [respectively,] may at any time recommend one of the following alternate methods of electing governing board members: (a) That each member of the governing board be elected by the registered voters of the entire district. (b) That one or more members residing in each trustee area be elected by the registered voters of that particular trustee area. (c) That each governing board member be elected by the registered voters of the entire school district or community college district, but reside in the trustee area which he or she represents. The recommendation shall provide that any affected incumbent member shall serve out his or her term of office and that succeeding board members shall be nominated and elected in accordance with the method recommended by the county committee. Whenever trustee areas are established in a district, provision shall be made for one of the alternative methods of electing governing board members.

[In counties with a population of less than 25,000,] the county committee on school district organization or the county board of education, if it has succeeded to the duties of the county committee, may at any time, by resolution, with respect to trustee areas established for any school district, other than a community college district, amend the provision required by this

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Outcome Rationale: The Magnolia Elementary School District desires to have the requested Education Code sections waived because the waiver of these sections will allow the District to successfully adopt trustee areas and establish a by-trustee election process as expeditiously as possible, thereby enabling the District to avoid litigation resulting out of its current at-large election process for electing its governing board members.

It is imperative that the District adopt these areas and establish this process without delay and without interference because like many of the school districts that have been threatened with lawsuits under the California Voting Rights Act of 2001 (“CVRA”), the District currently utilizes an at-large election process to elect its governing board members. The District’s failure to successfully adopt and implement trustee areas and a by-trustee area election process leaves it vulnerable to such litigation in which the District would be exposed to potentially having to pay significant attorneys’ fees to plaintiffs, which would pose an undue hardship and extreme detriment to the District and its students.

CVRA History

The California Legislature enacted the California Voting Rights Act of 2001. (See California Elections Code §§ 14025-14032). This legislation makes all at-large election systems in California for cities, school districts and special districts vulnerable to legal attack, largely on proof of racially polarized voting, regardless of whether a majority district can be formed and, under the interpretation adopted by plaintiffs in other pending CVRA cases, without regard to the electoral success of minority candidates or the need to prove actual racial injury exists. The CVRA purports to alter several requirements that plaintiffs would have to prove under the Federal Voting Rights Act, thereby making it easier to challenge at-large election systems.

The first suit under the CVRA was filed against the City of Modesto in 2004. Modesto challenged the facial constitutionality of the CVRA on the basis that, by using race as the sole criterion of liability, the CVRA contains a suspect racial classification that California was required to justify under equal protection strict scrutiny standards. The trial court struck down the statute but the California Court of Appeal reversed. (Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660).

The City of Modesto ultimately settled the litigation, but not before paying plaintiffs $3 million dollars in attorneys’ fees to plaintiffs’ attorneys (the prevailing party [other than a public agency] is entitled to an award of their attorneys’ fees and costs under the CVRA) and another $1.7 million to its own attorneys.

Similarly, the Hanford Joint Union High School District was sued under the CVRA and after adopting trustee areas and establishing by-trustee area elections (and requesting and receiving the same waiver from the State Board of Education that is being requested here), paid plaintiffs in that lawsuit the sum of $110,000 pursuant to a settlement agreement. Most recently, the Madera Unified School District has been sued under the CVRA and their November 2008 governing board member election was enjoined by the court. The Plaintiffs in that case demanded $1.8 million in attorneys fees from that District, though that amount was subsequently reduced by the trial court and upheld on appeal.

Normally, under Education Code section 5020, the County Committee on School District organization, after conducting its own public hearing on the recommended plans, would call for an election and put the matter to a vote of the District’s electors. However, going through an election process would prevent the District from electing successor trustees in a timely manner and leaves the District vulnerable to a lawsuit and injunction.

The requested waiver will allow the District to complete its transition to a by-trustee area election process in time to for the next governing board member election which will reduce the District’s liability under the CVRA going forward.

Student Population: 6465

City Type: Urban

Public Hearing Date: 2/4/2016 Public Hearing Advertised: Posted at all nine schools and three public locations and in local newspaper--the Anaheim Bulletin.

Local Board Approval Date: 2/4/2016

Community Council Reviewed By: School Site Councils, DELAC, PTA, both Unions (CTA and CSEA). Community Council Reviewed Date: 1/8/2016 Community Council Objection: N Community Council Objection Explanation:

Audit Penalty YN: N

Categorical Program Monitoring: N

Submitted by: Dr. Frank Donavan Position: Superintendent E-mail: [email protected] Telephone: 714-761-5533 Fax:

Bargaining Unit Date: 01/08/2016 Name: California School Employees Association Representative: Matt Sumner Title: President Position: Support Comments:

Bargaining Unit Date: 01/08/2016 Name: Magnolia Educators Association Representative: Jodi Brown Title: President Position: Support Comments

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